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lawfully; when, instead, he not only has expected unlawful conduct, but has acted with the intent to bring about consequences which could not happen without the help of such unlawful acts on the part of others. The difference is illustrated by the difference between the general right of a landowner, as against trespassers, to put his land in what condition he likes, and his liability, even to trespassers (without notice), for man-traps or dog-spears. In the latter case, he has contemplated expressly what he would have had a right to assume would not happen, and the harm done stands just as if he had been on the spot and had done it in person. His intent may be said to make him the last wrong-doer.
So when the wrongful act expected is that of a third person, and not of the plaintiff, the defendant may be liable for the consequences of it. There is no doubt, of course, that a man may be liable for the unlawful act of another, civilly as well as criminally, and this now is pretty well agreed when the act is a breach of contract as well as when it is a tort.20 He is liable, if having authority he commands it; he may be liable if he induces it by persuasion. I do not see that it matters how he knowingly gives the other a motive for unlawful action, whether by fear, fraud, or persuasion, if the motive works. But, in order to take away the protection of his right to rely
19 Bird v. Holbrook, 4 Bing. 628, 641, 642. See Jordin v. Crump, 8 M. & W. 78; Chenery v. Fitchburg R.R., 160 Mass. 211, 213, 214.
20 Lumley v. Gye, 2 El. & Bl. 216; 1 Ames & Smith, Cases on Torts, 600, 612, note by Professor Ames.
upon lawful conduct, you must show that he intended to bring about consequences to which that unlawful act was necessary. Ordinarily, this is the same as saying that he must have intended the unlawful act. To sum the matter up in a rule, where it is sought to make a man answerable for damage, and the act of a third person is nearer in time than the defendant's to the harm, if the third person's act was lawful, it stands like the workings of nature, and the question is whether it reasonably was to be anticipated or looked out for; but if the third person's act was unlawful, the defendant must be shown to have intended consequences which could not happen without the act.21
Although actual intention is necessary in this class of cases, malice commonly is not so, except so far as the question of liability for an intervening wrongdoer is complicated with a question of privilege. The damage is assumed to be inflicted unlawfully, since the act of the third person which is nearest to it is assumed to be unlawful. If the defendant has no notice that the third person's act will or may be unlawful, he is free on general principles. But, notwithstanding the reserves of Bowen v. Hall,a2 if he
21 I venture to refer to a series of cases in which my views will be found illustrated. Hayes v. Hyde Park, 153 Mass. 514; Burt v. Advertiser Newspaper Co., 154 Mass. 238, 347; Tasker v. Stanley, 153 Mass. 148. [Note that, in this case, it did not appear that the conduct advised (the departure of the plaintiff's wife) would have been unlawful in any sense, on the facts assumed as the basis of the advice. It did not appear what those facts were. The question of privilege, therefore, was the main one.) Elmer v. Fessenden, 151 Mass. 359, 362; Clifford v. Atlantic Cotton Mills., 146 Mass. 47.
22 6 Q.B.D. 333, 338.
knows the act will be unlawful, it seems plain that persuasion to do it will make him liable as well when not malicious as when malicious. I cannot believe that bona fide advice to do an unlawful act to the manifest harm of the plaintiff ought to be any more privileged than such advice, given maliciously, to do a lawful act. Of course, I am speaking of effectual advice. It seems to me hard for the law to recognize a privilege to induce unlawful conduct. But, whether there is such a privilege or not, what I am driving at is, that apart from privilege there is no defence; that is to say, that malice is not material, on any other ground than that of privilege, to liability for the wrongful act of another man.
At this point, then, we have come again upon the question of privilege. When the purpose of the defendant's act is to produce the result complained of by means of illegal acts of third persons, his privilege will be narrower than when he intends to induce only legal acts. As I have said, I do not suppose that the privilege extended to honest persuasion to do harm to the plaintiff by lawful conduct, would extend to similar persuasion to do it by unlawful conduct. Take acts of which the privilege is greater. Could a man refuse to contract with A unless he broke his contract with B? There are cases by respectable courts which look as if he could not.23 What I have called heretofore the privilege not to contract really is only the negative side of a privilege to make contracts. I stated it in the negative way in order to make the claim of an absolute privilege more plausible. But the right not to contract in a certain event, and to say that you will not, means nothing unless it is implied that you offer a contract, that is, an act on your part, in the other event. If no such offer is understood, then you simply refuse to contract, whatever happens, which undoubtedly you may do. But there is no absolute privilege to make agreements which are not unlawful on their face, that is to say, which do not necessarily and always tend to produce a result that the law wishes to prevent. An agreement may be unlawful, because under the particular circumstances it tends to produce such a result, although in general harmless.
23 Temperton v. Russell (1893), 1 Q.B.D. 715, mentioned above for a different point. In this case, there was the additional element of combination. See the other cases cited above, p. 129, n. 14.
The question has arisen, how close the connection must be between an agreement for instance, a sale — and the result sought to be prevented, in order to make the sale unlawful. I presume that the same degree of connection which would have that effect would make the seller liable if the result in question was a tort. In Graves v. Johnson, where intoxicating liquor was found to have been sold in Massachusetts, "with a view to" an illegal resale by the purchaser in Maine, a majority of the court interpreted the words quoted as meaning that the seller intended that the buyer should resell unlawfully, and was understood by the latter to be acting in aid of that purpose, and held the sale unlawful. But it
156 Mass. 211.
may be conjectured that the decision would have been different if the seller merely had known of the buyer's intent without encouraging or caring about it.
In questions of privilege, the nature of the defendant's act, the nature of the consequences, and the closeness of the bond between them, may vary indefinitely. We may imagine the conduct to be of the most highly privileged kind, like the use of land, and to consist of imposing conditions upon the letting of rooms or the removal of a building cutting off a view. We may imagine the conditions to be stated with intent, but without any persuasion or advice, that they should be satisfied, and we may imagine them to be illegal acts anywhere from murder down to breach of a contract to take the Herald for a month. Interesting cases of such a kind might be framed for a moot court, although I hardly expect to meet one in practice. But, as I have said,
my object is not to decide cases, but to make a little clearer the method to be followed in deciding them.